FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51013/99 by Jan Hendrik SASSEN against the Netherlands

The European Court of Human Rights ( First Section ), sitting on 14 March 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr C. Bîrsan, Mr B. Zupančič, Mrs W. Thomassen, Mr T. Panţîru, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 29 April 1999 and registered on 17 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1944 and living in Nijmegen , the Netherlands. He is represented before the Court by Mr M.P.H. Winters, a lawyer practising in Arnhem , the Netherlands.

A. Particular circumstances of the case

The applicant is the author of a computer programme for the calculation of amounts of maintenance to be used by national courts. The programme was published by the Kluwer publishing company. The applicant’s programme tested best in a trial in which two other programmes participated but the authors of one of the other programmes, Messrs F. and W., obtained an injunction when Kluwer started advertising the applicant’s programme in legal journals - the test results had allegedly been ‘frozen’ at the instigation of the authors of the third programme who were attached to a regional court. Kluwer then attempted to get the applicant and Messrs F. and W. to work together but the applicant refused. Subsequently, Kluwer decided to publish the programme of Messrs F. and W.

The applicant started proceedings for damages against both Kluwer and Messrs F. and W., arguing that their actions had caused him to lose his advantage which the test results had given him from a marketing point of view. In the proceedings against Kluwer , the Court of Appeal ( Gerechtshof ) of Arnhem decided on 3 March 1992 that Kluwer’s actions had indeed caused prejudice to the applicant and in a separate procedure the amount of damages to be paid by Kluwer to the applicant should be calculated.

In a judgment of 9 February 1995 the Regional Court ( Arrondissementsrechtbank ) of Zutphen ordered Kluwer to pay a certain amount of damages (about 10% of what the applicant had demanded), rejected the applicant’s other demands in respect of Kluwer (namely that Kluwer halt its publication of Messrs F. and W.’s programme) and declared the applicant’s claims on Messrs F. and W. inadmissible as it held that these claims covered the same damage as the applicant claimed from Kluwer . On 4 March 1997 the Court of Appeal of Arnhem quashed this decision, but only insofar as the amount of damages was concerned (the Court of Appeal lowered this amount). It held that the applicant’s claim on Messrs F. and W. was admissible, but rejected this claim because Messrs F. and W. had not acted unlawfully towards the applicant and the Court of Appeal also agreed with the Regional Court that the applicant’s claims on Messrs F. and W. were the same as those on Kluwer .

The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ), raising a number of complaints relating to the reasoning applied by the Court of Appeal and also arguing that there was a contradiction between the Court of Appeal’s judgments of 3 March 1992 and that of 4 March 1997. According to the applicant, these circumstances created at least the impression that the lower courts, most of whose judges where also contractually connected to the Kluwer company, had not been impartial. The applicant requested the Supreme Court in writing to appoint judges to this case who had no ties with Kluwer .

In the proceedings before the Supreme Court the Advocate-General at that court submitted an advisory opinion to which the applicant was able to reply. In his response he pointed out that this particular Advocate-General had had a number of written works published by Kluwer in the time before he became Advocate-General.

On 6 November 1998 the Supreme Court rejected the appeal in cassation. Four of the five Supreme Court judges have had written works published by Kluwer or companies part of the Kluwer conglomerate.

B. Relevant domestic law

Pursuant to Article 29 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) a party may challenge any of the judges assigned to examine a case on the grounds of facts or circumstances which might prejudice the judicial impartiality. A request to challenge a judge should be made as soon as the person concerned has become familiar with these facts or circumstances (Article 30 § 1 of the Code of Civil Procedure).

Article XIII § 2 of the Rules of Court of the Supreme Court ( Reglement van Orde van de Hoge Raad der Nederlanden ) provides that at the request of one of the parties to the proceedings the Registrar will notify to that party the names of the members of the Supreme Court who will render judgment in a particular case.

The duties and position of the Procurator-General’s department ( openbaar ministerie ) are defined in the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ). The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutor’s of the regional and district courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1).

The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (Article 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial because of a lack of impartiality on the side of the Advocate-General and the Supreme Court: they had contractual ties with one of the parties to the proceedings, i.e. Kluwer .

The applicant further raises the same complaints as he did before the Supreme Court of the reasoning applied by the Court of Appeal and its implications for the impartiality of the lower courts.

THE LAW

Article 6 § 1 of the Convention provides, in so far as relevant, as follows:

“1. In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

1. In respect of the complaint of a lack of impartiality of the Supreme Court, the Court notes in the first place that the applicant could have obtained from the Supreme Court’s registry the names of the judges who would be dealing with his case (Article XIII § 2 of the Rules of Court of the Supreme Court) following which he could have attempted to challenge those judges whose impartiality was, to his mind at least, in doubt. The applicant’s written request that no judges with ties to Kluwer be assigned to the case cannot be considered as making normal use of an existing remedy and the applicant would thus not appear to have complied with the requirement of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention in respect of this complaint.

In any event, the Court considers that the fact that a member of the judiciary has had works published by a particular company does not necessarily entail that that person would no longer be impartial in proceedings involving that company.             

As far as the position of the Advocate-General is concerned, the Court observes that an advocate-general is a member of the Procurator-General’s department and not of the tribunal that is the Supreme Court and, moreover, that the applicant was able to reply to the advisory opinion of the Advocate-General.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention

2. As regards the applicant’s remaining complaints, the Court reiterates that it is not a court of appeal from domestic courts and cannot intervene to investigate allegations that the domestic courts reached the wrong decision (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45). It further finds that the application’s allegations to the effect that the ties between the legal establishment in the Netherlands and Kluwer resulted in the rejection of his claims are unsubstantiated and not borne out by the judgments of the lower courts.

In these circumstances, the Court concludes that also the remainder of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President